Citation Nr: 21001655
Decision Date: 01/11/21	Archive Date: 01/11/21

DOCKET NO. 18-30 824
DATE: January 11, 2021

ORDER

Entitlement to an effective date prior to May 5, 2015, for the award of service connection for an adjustment disorder is denied.

Entitlement to an effective date prior to September 24, 2014, for the award of an increased rating of 20 percent for a left knee scar is denied.

Entitlement to an effective date prior to September 24, 2014 for the award of a separate, noncompensable rating for left lower extremity scars is denied.

Entitlement to an increased rating in excess of 20 percent for a left knee scar is denied.

Entitlement to an increased rating in excess of 10 percent for a left plantar scar is denied.

Entitlement to a compensable rating for left lower extremity scars is denied.

Entitlement to an increased rating of 20 percent, but no higher, for a right leg scar is granted.

Entitlement to a compensable rating for a right ankle scar is denied.

Entitlement to an initial compensable rating for a right foot scar is denied.

Entitlement to an increased rating in excess of 10 percent for left foot hammer toe is denied.

Entitlement to an increased rating in excess of 10 percent for right foot hammer toe is denied.

Reopening of the claim for service connection for a left upper extremity neurologic disability is granted; the appeal is granted to this extent only.

Reopening of the claim for service connection for a right upper extremity neurologic disability is granted; the appeal is granted to this extent only.

Reopening of the claim for service connection for a left shoulder orthopedic disability is granted; the appeal is granted to this extent only.

Reopening of the claim for service connection for a left wrist disability is granted; the appeal is granted to this extent only.

Reopening of the claim for service connection for a right wrist disability is granted; the appeal is granted to this extent only.

REMANDED

Entitlement to an initial rating in excess of 30 percent for an adjustment disorder is remanded.

Entitlement to an increased rating in excess of 20 percent for a cervical spine strain is remanded.

Entitlement to an increased rating in excess of 20 percent for right shoulder capsulitis is remanded.

Entitlement to service connection for a lumbar spine disability, to include as secondary to bilateral hammer toes, is remanded.

Entitlement to service connection for a left shoulder orthopedic disability, to include as secondary to a cervical spine disability, is remanded.

Entitlement to service connection for left wrist disability is remanded.

Entitlement to service connection for a right wrist disability is remanded.

Entitlement to service connection for a left upper extremity neurologic disability, to include as secondary to a cervical spine disability, is remanded.

Entitlement to service connection for right upper extremity neurologic disability, to include as secondary to a cervical spine disability, is remanded.

Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.

Entitlement to service connection for hypertension, to include as secondary to a psychiatric disability, is remanded.

Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to a psychiatric disability, is remanded.

Entitlement to service connection for a hiatal hernia, to include as secondary to a psychiatric disability, is remanded.

Entitlement to service connection for sleep apnea, to include as secondary to a psychiatric disability, is remanded.

Entitlement to service connection for erectile dysfunction, to include as secondary to a psychiatric disability, is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. VA received the Veteran’s supplemental claim for entitlement to service connection for an acquired psychiatric disorder on May 5, 2015, more than one year after his separation from service. 

2. Prior to the May 5, 2015 supplemental claim, there were no pending requests for service connection for a psychiatric disability that remained unadjudicated.

3. VA received a formal claim for an increased rating for right leg scars on September 24, 2014, and a supplemental claim for an increased rating for a left knee scar on May 5, 2015.

4. Prior to the September 24, 2014 formal claim, there were no pending requests for an increased rating for the left knee scar that remained unadjudicated.

5. VA received a formal claim for an increased rating for right leg scars and service connection for left plantar scars on September 24, 2014.

6. Prior to the September 24, 2014 formal claim, there were no pending requests for service connection for left lower extremity scars.

7. Throughout the period on appeal, the Veteran’s left knee scar has been found to be a deep, non-linear scar affecting at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) of the left lower extremity.

8. Throughout the period on appeal, the Veteran’s left plantar scar has been found to be painful, but not both painful and unstable.

9. Throughout the period on appeal, the Veteran’s left lower extremity scars have been found to be superficial, non-linear scars located at the left anterior thigh and left plantar area and to be affecting less than 144 square inches (929 sq. cm.) of the left lower extremity.

10. Throughout the period on appeal, the Veteran’s right leg scar has been noted to be a deep, non-linear scar and affecting an area of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) of the right lower extremity.

11. Throughout the period on appeal, the Veteran’s right ankle scar has not been noted to be manifested by any additional disabling effects or to be painful, unstable or both.

12. Throughout the period on appeal, the Veteran’s right foot scar has not been noted to be manifested by any additional disabling effects or to be painful, unstable or both.

13. Throughout the period on appeal, the Veteran’s left foot hammer toes have been manifested by unilateral hammer toes affecting all toes of the left foot, without clawfoot.

14. Throughout the period on appeal, the Veteran’s right foot hammer toes have been manifested by unilateral hammer toes affecting all toes the right foot, without clawfoot.

15. A March 2005 rating decision denied service connection for left and right upper extremity neuropathy. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

16. The evidence associated with the claims file subsequent to the March 2005 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for left and right upper extremity neurologic disabilities.

17. A December 2004 rating decision denied service connection for bilateral arm disabilities. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period.

18. The evidence associated with the claims file subsequent to the December 2004 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for bilateral arm disabilities.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to May 5, 2015, for the award of service connection for an adjustment disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

2. The criteria for an effective date prior to September 24, 2014, for the award of an increased rating of 20 percent for a left knee scar have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

3. The criteria for an effective date prior to September 24, 2014 for the award of a separate noncompensable rating for left lower extremity scars have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400.

4. The criteria for an increased rating in excess of 20 percent for a left knee scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7801.

5. The criteria for an increased rating in excess of 10 percent for a left plantar scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7804.

6. The criteria for an initial compensable rating for left lower extremity scars have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7802.

7. The criteria for an increased rating of 20 percent, but no higher, for a right leg scar have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7801.

8. The criteria for a compensable rating for a right ankle scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805.

9. The criteria for a compensable rating for a right foot scar have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7805.

10. The criteria for an increased rating in excess of 10 percent for left foot hammer toe have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282.

11. The criteria for an increased rating in excess of 10 percent for right foot hammer toe have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5282.

12. The March 2005 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

13. New and material evidence sufficient to reopen the claim of service connection for left and right upper extremity neuropathy has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

14. The December 2004 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

15. New and material evidence sufficient to reopen the claim of service connection for a left shoulder orthopedic disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

16. New and material evidence sufficient to reopen the claim of service connection for a left wrist disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

17. New and material evidence sufficient to reopen the claim of service connection for a right wrist disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 1975 to August 1977.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2015 and January 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). 

By way of background, in February 2015 the RO granted service connection for a right foot scar, assigning a noncompensable rating effective September 24, 2014, and denied increased ratings for a cervical spine strain, left and right foot hammer toes, a right leg scar, a left plantar scar and a left knee scar. The Veteran filed a notice of disagreement in June 2015 with the rating assigned for the right foot scar and the denials of increased ratings for the other disabilities.

In January 2016, the RO granted service connection for an adjustment disorder, assigning a 30 percent rating effective May 5, 2015, service connection for left lower extremity scars, assigning a noncompensable rating effective September 24, 2014, and an increased rating of 20 percent for a left knee scar effective September 24, 2014. The RO also granted reopening of claims for service connection for left and right upper extremity neuropathy. The RO then denied increased ratings for right shoulder capsulitis, a left plantar scar and a right ankle scar, and service connection for PTSD, GERD, a hiatal hernia, sleep apnea, erectile dysfunction, a left shoulder disability, left and right wrist disabilities, and left and right upper extremity neuropathy. 

The Veteran filed a notice of disagreement with the effective dates and ratings assigned for the adjustment disorder, left lower extremity scars and left knee scar, as well as the other denials of increased ratings and service connection. All of the above issues were combined into a single appeal and adjudicated in an April 2018 statement of the case. The Veteran then filed a timely submitted a substantive appeal as to all adjudicated issues in the statement of the case in June 2018.

In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). 

As such, the Board will address whether new and material evidence has been submitted to reopen claims for service connection for left and right upper extremity neurologic disabilities, a left shoulder orthopedic disability, and left and right wrist disabilities. While the RO did not address the question of reopening the claims for service connection for a left shoulder disability and left and right wrist disabilities, as reopening is being granted herein the Board finds that there is no prejudice to the Veteran in addressing the initial question of new and material evidence in the first instance.

In October 2020 correspondence, VA informed the Veteran that since the last adjudication of his claim by the agency of original jurisdiction (AOJ) that additional VA treatment records had been associated with the file and was asked whether he wished to waive AOJ review of this evidence. 38 C.F.R. § 20.1305(c). While the Veteran initially stated that he wished to have his appeal remanded, the Veteran, through his representative, in November 2020 submitted additional correspondence stating that he wished to waive AOJ review. Id. As such, the Board will consider this evidence in the first instance. 

In February 2019, the Veteran and his attorney were informed that his appeal had been docketed at the Board, and were further informed that they had a period of 90-days to submit additional evidence or argument. To date, no argument from either the attorney or the Veteran has been received. As the Veteran and his representative were afforded the opportunity to provide argument in support of the appeal but chose not to, the Board will proceed to adjudicate the appeal on the merits. 38 C.F.R. § 20.5.

Veterans Claims Assistance Act of 2000 (VCAA)

The Board notes that along with the April 2016 notice of disagreement the Veteran’s attorney submitted a nine page addendum. However, this addendum consists entirely of restatements of law, several of which appear to not even be applicable to the current appeal. The addendum is completely devoid of any application of the quoted legal principles to the facts of the case, and does not contain anything resembling a legal argument in support of any of the issues or regarding failures of the duties to notify and assist. 

Such generic, boilerplate restatements of legal principles, particularly when submitted by an attorney, are insufficient to raise issues with the duty to notify or assist before the Board. Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015; Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). As no specific arguments have been made with respect to the duty to notify or assist, nor have any other issues been raised by the record, the Board will proceed to adjudicate the appeal on the merits.

Earlier Effective Dates

Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012). If a claim for compensation is received within one year after separation from service, the effective date for an award of service connection is the day following separation from active service. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b)(2) (2018).

Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400(o)(1) (2018). However, the effective date of an award of increased compensation may also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Such increase in severity must occur during the one-year period prior to the claim for increase for an earlier effective date to be assigned. Gaston v. Shinseki, 605 F.3d 979, 983–84 (Fed. Cir. 2010). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2).

During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686.

Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, in cases involving previously denied claims reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b).

Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2014). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. 

Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2017). A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b) (2017). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id.

1. Earlier effective date for service connection for an adjustment disorder.

The Veteran filed a supplemental claim for service connection for an acquired psychiatric disability on May 5, 2015, and service connection was granted in a January 2016 rating decision. The RO assigned an effective date of May 5, 2015, the date of the supplemental claim. 

Prior to the May 5, 2015, supplemental claim, the Veteran did not file any statements which may be interpreted as expressing an intent to file a claim for service connection that identified, at even a high level of generality, a psychiatric disability of any kind or identified any treatment records concerning the disability. Sellers v. Wilkie, 965 F.3d 1328, 1337–38 (Fed. Cir. 2020); see also Shea v. Wilkie, 926 F.3d 1362, 1369–70 (Fed. Cir. 2019). While the Veteran has separately filed a claim for service connection for PTSD, the claim for service connection for PTSD was included as part of the May 5, 2015 supplemental claim for benefits. As the claim for service connection for PTSD was filed at the same time as the claim for service connection for an acquired psychiatric disability, it cannot be used to establish an earlier date of claim in this case. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Finally, as the Veteran’s claim for service connection was received well after the one-year period following his separation from service, the day following the Veteran’s separation from service cannot be used as an effective date. 38 C.F.R. § 3.400(b)(2). As such, the Board finds that the appropriate date of claim in this case is May 5, 2015, the date on which VA received the Veteran’s supplemental claim requesting service connection for an acquired psychiatric disability. 

As noted earlier, the effective date for an award of service connection is to be fixed based on the facts found, but cannot be earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012). Here, the Veteran’s claim for service connection for an acquired psychiatric disability was received on May 5, 2015. There is no evidence of any claims for service connection for a psychiatric disability prior to that date, and the Veteran and his representative have not presented any argument as to why an earlier date is warranted. As such, the claim for an effective date earlier than September 15, 2014, for the award of service connection for an acquired psychiatric disability is denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

2. Earlier effective date for an increased rating for a left knee scar.

The Veteran filed his claim for an increased rating for his right leg scar on September 24, 2014, and a supplemental claim for service connection for the left knee scar on May 5, 2015. The RO granted an increased rating of 20 percent for the Veteran’s left knee scar in a January 2016 rating decision, and assigned an effective date of September 24, 2014, the date of the Veteran’s claim for an increased rating for the right leg scar.

Prior to the receipt of the September 24, 2014 claim, there were no pending but unadjudicated claims for an increased rating for the left knee scar. The RO most recently denied an increased rating in excess of 10 percent for the left knee scar, then characterized as a left leg scar, in a December 2004 rating decision. The Veteran did not submit any statements expressing disagreement with the denial of an increased rating for the left knee scar. 38 C.F.R. §§ 20.201, 20.302 (2004). As such, the Veteran did not initiate a formal appeal of the December 2014 rating decision denying an increased rating. 38 C.F.R. § 20.1103.

The Board notes that VA examinations were associated with the file during the one-year appellate period following the December 2004 rating decision. However, the January 2005 scar examination exclusively discussed scars affecting the right lower extremity and the face and did not in any way discussed the left knee scar. Therefore, the January 2005 examination does not contain any information indicating that the left knee scar was worse than the assigned 10 percent rating. 38 C.F.R. § 3.156(b). No other evidence indicating that the left knee scar warranted a higher rating was associated with the file during the one-year appellate period. Id.; see Lang v. Wilkie, 971 F.3d 1348, 1353–55 (Fed. Cir. 2020). As such, the December 2004 denial of an increased rating was final. 

Between the December 2004 denial of an increased rating for the left knee scar and the September 24, 2014 claim, no correspondence was received from the Veteran which expressed an intent to file a claim for an increased rating for his left knee scar, nor was any evidence associated with the file showing that the left knee scar had worsened. 38 C.F.R. § 3.157(b) (2014); see Shea v. Wilkie, 926 F.3d 1362, 1369–70 (Fed. Cir. 2019). As such, the Board finds that there were no earlier outstanding but unadjudicated claims, whether formal or informal, for an increased rating for a left knee scar. Therefore, the appropriate date of claim in this case is September 24, 2014. 38 C.F.R. § 3.155(b).

Having determined the appropriate date of claim, as noted above the effective date for the award of an increased rating may be assigned up to one year prior to receipt of the claim, if it is factually ascertainable during the one year prior to the claim that an increase in disability occurred. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983–84 (Fed. Cir. 2010). However, there is no evidence showing that the Veteran’s left knee scar worsened during the one year prior to the September 24, 2014 claim. As it is not factually ascertainable that an increase in disability occurred during the one year prior to the Veteran’s claim, an effective date prior to the date of claim cannot be assigned in this case. 38 C.F.R. § 3.400(o)(2); see Gaston, 605 F.3d 983–84.

Based on the above, an effective date prior to the already assigned date of September 24, 2014, the date of receipt of the Veteran’s claim for an increased rating, is not possible. The Veteran was denied entitlement to an increased rating in a final December 2004 rating decision, and there is no evidence of any claims for an increased rating prior to September 24, 2014. Neither the Veteran nor his representative have advanced any arguments as to why an earlier effective date for the award of an increased rating is warranted in this case. For these reasons, the claim for an effective date prior to September 24, 2014, for the award of an increased rating of 20 percent for a left knee scar is denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o).

3. Earlier effective date for service connection for left lower extremity scars.

The Veteran filed a claim for an increased rating for a right leg scar on September 24, 2014 and for a left knee scar on May 5, 2015. In light of these claims, in a January 2016 rating decision the RO assigned a separate, noncompensable rating for left lower extremity scars, effective September 24, 2014. As the Veteran is appealing the effective date assigned for the award of a separate, compensable rating, which was awarded as part of a claim for an increased rating for other already service-connected scars, the Board will apply the law and regulations governing the assignment of effective dates for increased ratings. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o).

Prior to September 24, 2014, the Veteran was most recently denied entitlement to an increased rating for a left leg scar in December 2004. This denial would have placed an objective reasonable claimant on notice that no other additional ratings for other scars affecting the left lower extremity could be assigned based on the evidence at the time. Cogburn v. Shinseki, 24 Vet. App. 205, 212–13 (2010) (Cogburn I). As discussed in the section directly above, the Veteran did not appeal the denial of an increased rating for the left leg scar, nor was new and material evidence submitted within the one-year appellate period following that decision. 38 C.F.R. § 3.156(b), 20.302 (2004); see Lang, 971 F.3d at 1353–55. As such, the December 2004 decision was final.

During the period between the December 2004 rating decision and the September 24, 2014, the Veteran did not submit any correspondence expressed a desire to file a claim for an increased rating for his scars, nor was any evidence associated with the file which may be construed as a claim for an increased rating for left leg scars. 38 C.F.R. § 3.157(b) (2014); see Shea, 926 F.3d at 1369–70. Therefore, , the Board finds that there were no earlier outstanding but unadjudicated claims, whether formal or informal, for an increased rating. As such, the appropriate date of claim in this case is September 24, 2014. 38 C.F.R. § 3.155(b) (2019). Nor is there any evidence of worsening of the disability during the one-year prior to the September 24, 2014 claim for an increased rating. None of the evidence reflects notation of additional left lower extremity scars during that period, with the additional scars only being identified during a February 2015 scar examination. Therefore, an effective date prior to the date of claim cannot be assigned in this case. 38 C.F.R. § 3.400(o)(2); see Gaston, 605 F.3d 983–84.

Finally, even if the award of the separate, noncompensable rating were to be assigned based on the laws and regulations governing the assignment of effective dates for the award of service connection, an effective date prior to September 24, 2014 would still not be warranted. 38 U.S.C. § 5110. VA received a claim for service connection for left plantar scars and an increased rating on September 24, 2014, and a claim for an increased rating for left knee scars on May 5, 2015. Prior to that date, the Veteran had submitted no correspondence which may be interpreted as a claim for service connection for any additional scars affecting the left lower extremity. In addition, as discussed earlier the Veteran was denied entitlement to an increased rating for left leg scars generally in a final December 2004 rating decision, which would have placed an objective reasonable claimant on notice that no additional separate ratings could be assigned for other scars. Cogburn I, 24 Vet. App. at 212–13. Further, the claim was received well after the Veteran’s separation from service, and therefore the day after the Veteran’s separation cannot be assigned as an effective date in this case. 38 C.F.R. § 3.400(b)(2). Thus, an earlier effective date based on the regulations governing effective dates for awards of service connection is not warranted either. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b).

Based on the above, an effective date for the award of separate compensable ratings for the Veteran’s left lower extremity scars prior to the already assigned date of September 24, 2014, the date of receipt of the Veteran’s claim for an increased rating, is not possible. Neither the Veteran nor his representative have advanced any arguments as to why an earlier effective date for the award of the separate noncompensable rating is warranted in this case. For these reasons, the claim for an effective date prior to September 24, 2014, for the award of a separate noncompensable rating for left lower extremity scars is denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o).

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.

4. Entitlement to an increased rating for a left knee scar.

The Veteran’s left knee scar is rated under Diagnostic Code 7801. As an initial matter, the Board notes that some of the rating criteria for evaluating certain types of scars and skin disabilities were amended effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018) (eff. Aug. 13, 2018). However, the alterations made to Diagnostic Code 7802 did not affect the rating criteria nor did it affect how the rating criteria are applied. Compare 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017) with 38 C.F.R. § 4.118, Diagnostic Code 7801 (2019). Instead, the amendment altered the wording of the explanatory notes accompanying Diagnostic Code 7801 in order to enhance their clarity without altering their directives on how to properly apply Diagnostic Code 7801. As the amendment resulted in only cosmetic, as opposed to functional, alterations to Diagnostic Code 7801, the Board will not discuss the amendment further. As the post-amendment language contained in the notes accompanying Diagnostic Code 7801 is clearer, and as there is no difference in the practical application of the pre-amendment and post-amendment wording, the Board will utilize the post-amendment language herein.

Under Diagnostic Code 7801, a 20 percent rating is warranted for scars not of the head, face or neck, that are deep and non-linear which affect an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). A 30 percent rating is warranted for such scars affecting an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). Id. Finally, a 40 percent rating is warranted for such scars affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. 

The six zones of the body are defined as each extremity, anterior trunk and posterior trunk. Id., Note 1. The midaxillary line divides the anterior trunk from the posterior trunk. Id. A separate evaluation may be assigned for each affected zone of the body under this Diagnostic Code if there are multiple scars, or a single scar, affecting multiple zones of the body, which are to be combined. Id., Note 2. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under Diagnostic Code 7801. Id.

During the period on appeal, the Veteran has generally argued that his left knee scar is worse than currently rated, but he has provided no specific information in his submitted statements concerning the type or severity of the symptoms associated with the scar. In light of the nonspecific nature of the Veteran’s statements, the Board finds they are entitled to no probative weight. 

The Veteran was provided with VA examinations in February 2015 and January 2016. In February 2015 the examiner noted that the Veteran had a scar on the medial upper left knee which was deep and non-linear. The examiner noted that the scar measured 14.5 cm. by 10 cm., for a total affected area of 145 cm. sq. The examiner stated that the scar was not unstable, painful or both, and did not note any other disabling manifestations. In January 2016 the examiner noted that the Veteran had a deep and non-linear scar which had undergone skin grafting. The examiner noted that the scar measured 12 cm. by 9 cm., for a total affected area of 108 cm. sq. The scar was not found to be unstable, painful or both, and the examiner noted no further disabling manifestations. 

There is no evidence that the above examiners were either not competent or credible. Further, both assessments were based on both the Veteran’s description of the disability as well as each examiner’s own objective assessment of the severity of the scar. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Veteran’s treatment records reflect references to his scars as part of psychiatric counselling, but contain no assessments of the severity of the left knee scar itself. As such, these records are entitled to minimal probative weight as to the severity of the left knee scar.

Based on the above, an increased rating in excess of 20 percent for the Veteran’s left knee scar is not warranted in this case. While the scar has been noted to be deep and non-linear, neither examiner noted that the scar affected an area in excess of 72 square inches (465 sq. cm.). Indeed, both examiners specifically noted that the left knee scar affected an area of at most 145 cm. sq. Further, the scar has been noted to only affect one zone of the body, i.e. the left lower extremity, and therefore additional ratings cannot be assigned based on the fact that the left knee scar affects multiple zones. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. As such, the Board finds that an increased rating in excess of 20 percent for the Veteran’s left knee scar is not warranted in this case. 38 C.F.R. § 4.118, Diagnostic Code 7802. 

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. There is no evidence that the left knee scar is unstable, painful or both, with both examiners specifically noting that none of the Veteran’s scars were unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Likewise, there is no evidence that the Veteran has any other disabling effects associated with the left knee scar, with both of the VA examiners noting no further manifestations or interference with any joints. Therefore, additional or higher ratings are not possible based on other disabling effects. 38 C.F.R. § 4.118, Diagnostic Code 7805.

All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 20 percent for the Veteran’s service-connected left knee scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

5. Entitlement to an increased rating for a left plantar scar.

The Veteran’s left plantar scar is rated under Diagnostic Code 7804. As noted above, during the course of the current appeal some of the rating criteria for evaluating certain types of scars and skin disabilities were amended effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018) (eff. Aug. 13, 2018). However, the amendment made no changes to the criteria contain in, or the notes accompanying, Diagnostic Code 7804, and therefore the amendment need not be addressed further.

Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 20 percent rating is warranted for three or four scars that are unstable or painful. Id. Finally, a 30 percent rating is warranted for five or more scars that are unstable or painful. Id. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note 1. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id., Note 2. Scars evaluated under Diagnostic Code 7800, 7801, 7802, or 7805 may also receive ratings under Diagnostic Code 7804, when applicable. Id., Note 3.

The Veteran was provided with VA examinations in February 2015 and January 2016. The February 2015 examiner noted that none of the Veteran’s scars were unstable, painful or both, and did not note any other disabling manifestations. The January 2016 examiner noted a separate left plantar scar, which was superficial and linear and measured 5 cm. by 0.5 cm. The January 2016 examiner also stated that none of the scars were unstable, painful or both, and the examiner noted no other disabling manifestations.

The Veteran was also provided with a foot examination in February 2015. The examiner noted that the Veteran had scars associated with his left foot hammer toes, but that none of the scars were unstable, painful, or both. There is no evidence that the above examiners were either not competent or credible, and further the assessments were based on the Veteran’s description of the disability as well as each examiner’s own assessment of the severity of the scars. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

As discussed with respect to the left knee scar, while the Veteran has generally argued that his scars warrant higher ratings, he has provided no specific information concerning his symptoms. As such, his statements are entitled to no probative weight. Further, the Veteran’s treatment records reflect references to his scars as part of psychiatric counselling but contain no assessments of the severity left plantar scar. As such, these records are entitled to minimal probative weight concerning the left lower extremity scars.

Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating is warranted for the Veteran’s left plantar scar. Neither the scar nor foot examiners have indicated that the Veteran has any scars which are painful, unstable or both during the period on appeal. Further, the January 2016 examiner specifically stated that the plantar scar was linear and superficial, and was not painful or unstable. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran has in excess of 2 painful or unstable scars. 38 C.F.R. § 4.118, Diagnostic Code 7804.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. There is no evidence that the left plantar scar is deep, i.e. that there is underlying soft tissue damage, with the January 2016 examiner specifically noting it to be superficial. 38 C.F.R. § 4.118, Diagnostic Code 7801. There is no evidence that the scar is non-linear or affects an area in excess of 144 square inches (929 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7802. Likewise, there is no evidence that the Veteran has any other disabling effects associated with the left plantar scar. Therefore, additional or higher ratings are not possible based on other disabling effects. 38 C.F.R. § 4.118, Diagnostic Code 7805.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran’s service-connected left plantar scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

6. Entitlement to an increased rating for left lower extremity scars.

The Veteran’s left lower extremity scars are rated under Diagnostic Code 7802. As discussed above with respect to Diagnostic Code 7801, the rating criteria for evaluating certain types of scars and skin disabilities were amended effective August 13, 2018. 83 Fed. Reg. 32,592 (July 13, 2018) (eff. Aug. 13, 2018). However, the alterations made to Diagnostic Code 7802, as with Diagnostic Code 7801, did not affect the rating criteria or how those criteria are applied. Compare 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017) with 38 C.F.R. § 4.118, Diagnostic Code 7802 (2019). Instead, the amendment simply clarified the wording of the explanatory notes accompanying Diagnostic Code 7802. Since the changes resulting from the amendment were purely cosmetic, and not functional, in nature, the Board will not address the pre- and post-amendment versions of the criteria herein. As the post-amendment language contained in the notes accompanying Diagnostic Code 7802 is clearer, and as there is no difference in the practical application of the pre-amendment and post-amendment wording, the Board will utilize the post-amendment language.

Under Diagnostic Code 7802, a 10 percent rating is warranted for scars not of the head face or neck, that are not associated with underlying soft tissue damage and affect an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. Where a Diagnostic Code does not provide a noncompensable rating, a noncompensable rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31.

For the purposes of Diagnostic Code 7802, the six zones of the body are defined as each extremity, anterior trunk and posterior trunk. 38 C.F.R. § 4.118, Diagnostic Code 7802, Note 1. The midaxillary line divides the anterior trunk from the posterior trunk. Id. A separate evaluation may be assigned for each affected zone of the body under this Diagnostic Code if there are multiple scars, or a single scar, affecting multiple zones of the body, which are to be combined. Id., Note 2. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under Diagnostic Code 7802. Id.

The Veteran was provided with VA examinations in February 2015 and January 2016. The February 2015 examiner noted a scar on the anterior left thigh that was superficial and non-linear, and affecting a total area of 76 cm. sq. The examiner noted that none of the Veteran’s scars were unstable, painful or both, and did not note any other disabling manifestations. The January 2016 examiner noted a separate left plantar scar, which was superficial and linear and measured 5 cm. by 0.5 cm. As the scar was noted to be linear, a total area affected was not provided. However, the Board takes judicial notice of the fact that this scar would result in a total area affected of 2.5 cm. sq. See FED. R. EVID. 201(b), (c).

A February 2015 foot examiner also noted that while the Veteran had scars associated with the left foot hammertoes, there was no evidence of painful or unstable scars nor did the scars affect an area greater than 144 square inches (929 sq. cm.). There is no evidence that the above examiners were either not competent or credible, and further the assessments were based on the Veteran’s description of the disability as well as each examiner’s own assessment of the severity of the scars. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

As discussed with respect to the other increased rating claims above, although the Veteran has argued that his scars should receive a higher rating, he has not provided any information concerning his specific symptoms. As such, his statements are entitled to no probative weight. Further, the Veteran’s treatment records reflect references to his scars in his psychiatric records but contain no assessments of the severity of the left lower extremity scars. As such, these records are entitled to minimal probative weight.

Based on the above evidence, the preponderance of the evidence is against a finding that a compensable rating is warranted for the left lower extremity scars. The Veteran’s current noncompensable rating is assigned for superficial, nonlinear scars of the left lower extremity, specifically the left foot plantar area and the anterior left thigh. Based on the measurements contained in the examination reports, the total area affected on the Veteran’s left lower extremity by the noted superficial and non-linear scars, even when the plantar scar is included as non-linear, does not more nearly approximate the 929 cm. sq. area contemplated by a compensable rating for superficial non-linear scars. As such, a compensable rating is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.118, Diagnostic Code 7802.

No additional higher or alternative ratings under different Diagnostic Codes can be applied. There is no evidence that the noted scars are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Likewise, each examiner noted that the scars are not painful or unstable, and that there is no evidence of other disabling effects associated with the left lower extremity scars. 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The preponderance of the evidence is against a compensable rating for the Veteran’s service-connected left lower extremity scars. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

7. Entitlement to an increased rating for a right leg scar.

The Veteran’s right leg scar is rated under Diagnostic Code 7801. Under Diagnostic Code 7801, a 10 percent rating is warranted for scars not of the head face or neck, that are associated with underlying soft tissue damage which affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801. A 20 percent rating is warranted for such scars which affect an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). Id. A 30 percent rating is warranted for such scars affecting an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). Id. Finally, a 40 percent rating is warranted for such scars affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Id. 

For the purposes of Diagnostic Code 7801, the six zones of the body are defined as each extremity, anterior trunk and posterior trunk. Id., Note 1. The midaxillary line divides the anterior trunk from the posterior trunk. Id. A separate evaluation may be assigned for each affected zone of the body under this Diagnostic Code if there are multiple scars, or a single scar, affecting multiple zones of the body, which are to be combined. Id., Note 2. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under Diagnostic Code 7802. Id.

The Veteran was provided with VA examinations in February 2015 and January 2016. In February 2015 the examiner noted that the Veteran had a right lower extremity scar just below and lateral to the right knee, which was deep and non-linear. The examiner noted that the scar measured 23 cm. by 12 cm., and affected a total area of 296 cm. sq. of the right lower extremity. The examiner stated that none of the scars were unstable or painful, and that there was no other evidence of disabling effects. The January 2016 examiner did not note any deep and non-linear scars on examination.

During the period on appeal, the Veteran has generally contended that he is entitled to a higher rating for his right lower extremity scar, but has provided no specific information concerning the symptoms associated with the scar. As such the Veteran’s statements are of no probative value. Similarly, while the VA treatment records contain passing references to the Veteran’s scars, they contain no information concerning the severity of the scar or any symptoms associated with it. As such, the records are also entitled to no probative weight.

Based on the above, the Board finds that an increased rating of 20 percent, but no higher, for a right lower extremity scar is warranted. The February 2015 examiner noted that the scar below and lateral to the right knee was deep and non-linear, and provided a total affected area of 296 cm. sq., which meets the criteria for a 20 percent rating under Diagnostic Code 7801. As such, an increased rating of 20 percent is warranted throughout the period on appeal. 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 4.118, Diagnostic Code 7801.

However, a rating in excess of 20 percent is not warranted at any point. There is no evidence that the right lower extremity scar affected an area greater than the 296 cm. sq. noted in the February 2015 VA examination report, which is well short of the affected area sizes contemplated by higher ratings for deep and non-linear scars. Further, the scar has been noted to only affect one zone of the body, the right lower extremity, and therefore additional ratings cannot be assigned based on the fact that the scar affects multiple zones. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 2. As such, a rating in excess of 20 percent is denied. 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 4.118, Diagnostic Code 7801.

No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. There is no evidence that the left knee scar is unstable, painful or both, with both examiners specifically noting that none of the Veteran’s scars were unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. Likewise, there is no evidence that the Veteran has any other disabling effects associated with the right leg scar, with both of the VA examiners noting no further manifestations or interference with any joints. Therefore, additional or higher ratings are not possible based on other disabling effects. 38 C.F.R. § 4.118, Diagnostic Code 7805.

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The evidence supports the assignment of a 20 percent rating for a right lower extremity scar throughout the period on appeal. However, the preponderance of the evidence is against an increased rating in excess of 20 percent for the Veteran’s service-connected right leg scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

8. Entitlement to an increased rating for right ankle and right foot scars.

As an initial matter, as the facts and analysis concerning the claims for compensable ratings for the right ankle scar and right foot scar are substantially the same, the two claims will be addressed together for the purposes of brevity. 

The Veteran’s right ankle and right foot scars are currently rated under Diagnostic Code 7805. Under Diagnostic Code 7805, scars with disabling effects other than those evaluated under Diagnostic Codes 7800 through 7804 are to be rated under an applicable Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

The Veteran was provided with VA scar examinations in February 2015 and January 2016. Both examiners stated that the Veteran did not have any scars that were painful, unstable or both. Further, neither examiner indicated that the Veteran had other disabling effects attributable to the right ankle or right foot scars. The Veteran was also provided with a foot examination in February 2015. That examiner also stated that while the Veteran had right foot scars associated with his hammertoes, there was no evidence that they were painful, unstable or both, affected a total area in excess of 144 square inches (929 sq. cm.) or were deep and non-linear. 

There is no evidence that the above examiners were either not competent or credible, and further, the assessments were based on the Veteran’s reports of his symptoms as well as each examiner’s own assessment of the severity of the scars. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez, 22 Vet. App. 295.

The Veteran has not provided any specific information concerning symptoms associated with the right foot or right ankle scars. While treatment records contain passing references to the Veteran’s scars in psychiatric notes, no information concerning symptoms or disabling effects is contained in the records. As such, the statements and treatment records are entitled to no probative weight concerning the right foot or right ankle scars.

Based on the foregoing, the preponderance of the evidence is against a finding that compensable ratings are warranted for the right ankle or right foot scars. The record does not reflect that the Veteran has any other disabling effects associated with other scars, or that the scars interfere with use of either the ankle or foot to a compensable degree. As there is no evidence of any other disabling effects associated with either scar, a compensable rating is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.31, Diagnostic Code 4.118, Diagnostic Code 7805.

No additional higher or alternative ratings under different Diagnostic Codes can be applied. There is no evidence that the noted scars have accompanying underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Likewise, the scars do not affect a total area in excess of 144 square inches (929 sq. cm.) on the right lower extremity. 38 C.F.R. § 4.118, Diagnostic Codes 7802. Finally, each examiner noted that the scars are not painful or unstable or both. 38 C.F.R. § 4.118, Diagnostic Code 7804. 

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The preponderance of the evidence is against a compensable rating for either the right ankle scar or right foot scar. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

9. Entitlement to an increased rating for bilateral hammer toes.

As the facts and analysis concerning the claims for increased ratings for the left and right hammer toes are substantially the same, the two claims will be addressed together for the purposes of brevity.

The Veteran’s left and right hammer toes are rated under Diagnostic Code 5282. Under Diagnostic Code 5282, a 10 percent rating is warranted for hammer toe affecting all toes unilaterally without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. In this case, the Veteran is already assigned at 10 percent rating for both the left and right foot hammer toes. This contemplates hammer toes affecting all toes of a foot unilaterally, without clawfoot. As the Veteran is already in receipt of the maximum allowable rating for hammer toes for each foot, an increased rating is not warranted in this case. Id. 

The Veteran has only been diagnosed with hammer toes, which is specifically covered by Diagnostic Code 5282. As such, it would be inappropriate to rate this disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 336–37 (2015) (“the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy”). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. 

Further, Diagnostic Code 5282 applies broadly to all instances of hammer toes affecting all toes of a foot unliterally. As the Diagnostic Code is based solely on the number of hammer toes affecting each foot, it inherently contemplates all symptoms associated with hammer toes. As all of the Veteran’s symptoms are inherently contemplated by the rating criteria, extraschedular consideration is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009); see Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371, *6–*15 (Vet. App. Dec. 30, 2020).

All potentially applicable Diagnostic Codes have been considered. See Schafrath, 1 Vet. App. at 593. The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran’s service-connected left or right hammer toe. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied.

New and Material Evidence

Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. 

New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms “new” and “material” for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 1367–68 (Fed. Cir. 2011).

New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id.

For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 117–18.

10. Reopening of service connection for left and right upper extremity neurologic disabilities.

The RO last denied entitlement to service connection for left and right upper extremity neuropathy in a rating decision issued in March 2005. The Veteran was notified of the decision but did not file an appeal. 38 C.F.R. § 20.302. No evidence was associated with the file during the appellate period, nor were any new, relevant service department records associated with the file. 38 C.F.R. § 3.156(b), (c); see Lang v. Wilkie, 971 F.3d 1348, 1353–55 (Fed. Cir. 2020). Therefore, the March 2005 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103.

The evidence of record in March 2005 consisted of the Veteran’s service treatment records, VA examination reports, and a statement from the Veteran. The evidence failed to show that the Veteran’s disability was causally related to his active service or was caused or aggravated by a service-connected disability. Evidence received since the rating decision includes VA treatment records, additional examination reports, and further statements from the Veteran. Of particular note, in his statements the Veteran has reported on-going neurologic issues affecting his upper extremities since his separation from service. This statement is competent, and is presumed to be credible for the purposes of reopening. Justus, 3 Vet. App. at 513.

The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of a nexus between the current disability and service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for left and right upper extremity neurologic disabilities is warranted.

11. Reopening of service connection for a left shoulder disability and left and right wrist disabilities.

As an initial matter, new and material evidence is only required to reopen a claim when that claim has been the subject of a previous, final denial on the same factual basis. 38 U.S.C. §§ 5018, 7104; 38 C.F.R. § 3.156. The factual basis of a claim is the diagnosed disease or injury. Boggs v. Peake, 520 F.3d 1330, 1334–37 (Fed. Cir. 2008). In cases where there is some question as to whether a claim for benefits is a new claim or one to reopen, three factors must be considered: 1) what symptoms the Veteran previously used in describing his prior claim, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the RO adjudicated the scope of the prior claims. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). If the evidence shows “distinctly diagnosed diseases or injuries” then it is a new claim, but if the evidence “tends to substantiate an element of a previously adjudicated matter” it is a claim to reopen. Id.

In this case, the Veteran initially filed a claim for a bilateral arm disability, which was denied in a December 2004 rating decision. In that decision, the RO noted that outside of possible neurologic disabilities of the upper extremities, which were the subject of a separate deferred decision, there was no evidence of a current bilateral arm disability that was caused by the Veteran’s period of service. Thus, in initially denying the Veteran’s claim the RO broadly determined that there were no bilateral arm disabilities, other than possible neurologic disabilities which were the subject of a later decision. In addition, in support of his current claim for benefits the Veteran has endorsed the same types of symptoms he reported during his initial claim, such as pain and weakness in his upper extremities. Id. Further, the Veteran has continued to allege now, as then, that these issues are residuals of an in-service incident where he was dragged behind a car. Id. 

Based on the foregoing, the Board finds that the Veteran’s current claim for service connection for a left shoulder orthopedic disability and left and right wrist disabilities are the same as the previously denied claim for service connection for a bilateral arm disability. Id. Indeed, all of the evidence that has been submitted goes to substantiate the previously unestablished fact that the Veteran has additional bilateral upper extremity disabilities other than the claimed neurologic disabilities resulting from the in-service incident where he was dragged by a car. Id. As the factual basis of the current claims are the same as the previously denied claim, new and material evidence is required to reopen them. Id.; Boggs v. Peake, 520 F.3d at 1334–37.

The RO last denied service connection for a bilateral arm disability in December 2004. The Veteran was notified of the decision, but did not file a notice of disagreement. No evidence was associated with the file during the appellate period, nor were any new, relevant service department records associated with the file since that decision. 38 C.F.R. § 3.156(b), (c); see Lang, 971 F.3d at 1353–55. Therefore, the December 2004 decision became final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 

The evidence of record in December 2004 consisted of the Veteran’s service treatment records and VA examination reports. The evidence of record failed to establish that the Veteran had left or right upper extremity disabilities, other than possible neuropathy, which was causally related to service. Evidence received since the rating decision includes treatment records, additional examination reports, and further statements from the Veteran. Of particular note, the Veteran has asserted that he currently has a left shoulder strain and the medical evidence reflects current diagnoses of left and right wrist arthritis and left and right wrist carpal tunnel syndrome.

The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of current bilateral arm disabilities other than the separately addressed left and right upper extremity neuropathy. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for a bilateral arm disability is warranted. With the prior claim reopened, the issue has been recharacterized as separate claims for service connection for a left shoulder orthopedic disability and left and right wrist disabilities.

REASONS FOR REMAND

1. Entitlement to an increased rating for an adjustment disorder.

The Veteran was most recently provided with a VA psychiatric examination in December 2015. Since that examination, the Veteran has asserted that his symptoms have worsened, reporting in a June 2019 statement that he feels nervous, anxious and angry all of the time. Further, in June 2016 the Veteran’s representative submitted a private employability assessment, in which the opining professional indicated impairment in a variety of areas, including judgment, concentration, memory and understanding complex commands, which could warrant an increased rating for the adjustment disorder. As there is an indication that the Veteran’s psychiatric disability has worsened since the December 2015 examination, a remand is warranted for a new examination to determine the current severity of the disability. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VA Gen. Coun. Prec. 11-95.

2. Entitlement to increased ratings for a cervical spine strain and right shoulder capsulitis.

The Veteran was most recently provided with a cervical spine examination in February 2015 and a right shoulder examination in January 2016. During both examinations, the Veteran reported experiencing flare-ups of the disabilities. However, neither examiner attempted to estimate the additional functional or range of motion loss experienced during these flare-ups, with both stating that to do so would require mere speculation without observing a flare-up of the disability. Sharp v. Shulkin, 29 Vet. App. 26, 34–36 (2017). 

While an examiner may state that an opinion cannot be provided without resorting to speculation, such a determination must still be supported by a reasoned rationale explaining why a determination cannot be made, which is not the case here. Jones v. Shinseki, 23 Vet. App. 382 (2010). As such, the Board finds that a remand is warranted so that new examinations can be provided to determine the current severity of the cervical spine and right shoulder disabilities.

3. Entitlement to service connection for a lumbar spine disability.

In January 2016, VA obtained an opinion concerning the etiology of the Veteran’s claimed low back disability. While the examiner discussed direct service connection, the examiner did not address whether the low back disability was caused or aggravated by the Veteran’s service-connected left or right hammer toes, as alleged in the Veteran’s May 2015 claim. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). As this theory of entitlement was not addressed, the Board finds that a remand is necessary so that an addendum opinion may be obtained concerning secondary service connection.

4. Entitlement to service connection for a left shoulder disability.

VA obtained an examination and opinion concerning the Veteran’s claimed left shoulder disability in January 2016. The examiner stated that it was less likely than not that the left shoulder disability was related to the Veteran’s service, as there was no evidence of a left shoulder injury in service. However, service treatment records reflect that the Veteran was treated for a left shoulder sprain in approximately March 1976. As the January 2016 opinion is based on an inaccurate factual premise, it is inadequate for adjudicatory purposes. Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993). As such, a remand is necessary for a new opinion concerning the etiology of the claimed left shoulder disability. 

5. Entitlement to service connection for left and right wrist disabilities.

VA obtained an opinion concerning the etiology of the claimed left and right wrist disabilities in January 2016. The examiner stated that the diagnosed disabilities of arthritis and carpal tunnel syndrome were less likely than not due to the Veteran’s service, as there was no evidence of wrist complaints during service or evidence of involvement of the wrists in the records concerning the incident where the Veteran was dragged by a car. However, service treatment records reflect a complaint of a left hand injury in January 1976 and complaints of weakness, including in the upper extremities, in November 1976. As the examiner’s opinion appears to be based on an inaccurate factual premise, it is inadequate for adjudicatory purposes. Reonal, 5 Vet. App. at 460–61. As such, a remand is necessary for a new opinion.

6. Entitlement to service connection for left and right upper extremity neurologic disabilities.

VA most recently obtained an opinion concerning the etiology of the claimed left and right upper extremity neurologic disabilities in January 2005. The examiner stated that the Veteran had both radiculopathy of the upper extremities, which was attributed to the cervical spine disability, and polyneuropathy, which the examiner stated was of unknown origin but likely not related to service. Treatment records reflect diagnoses of neuropathy, polyneuropathy and ulnar and median nerve neuropathy during the period on appeal, but no diagnosis of cervical radiculopathy. Further, the most recent February 2015 cervical spine examination noted that there was no evidence of cervical radiculopathy affecting either upper extremity. As the medical evidence is unclear as to the precise nature of the Veteran’s claimed left and right upper extremity neurologic disabilities, the Board finds that a remand is necessary for a new opinion to clarify the nature of the Veteran’s current disability.

Further, the Board notes that service treatment records reflect that the Veteran was treated for neurologic complaints affecting the upper extremities in approximately November 1976. An EMG was performed which noted possible polyneuropathy of the upper extremities at the time. This treatment, and the noted possible diagnosis, was not addressed in the January 2005 opinion. As such, remand is also warranted for a new opinion concerning the etiology of any of the Veteran’s neurologic diagnoses. 

7. Entitlement to service connection for PTSD.

VA most recently obtained a psychiatric examination in December 2015. The examiner stated that the Veteran did not have a diagnosis of PTSD in accordance with the DSM-5, and instead provided a diagnosis of an adjustment disorder. However, the examiner did not provide any reasoning supporting the conclusion that the Veteran did not meet the criteria for a diagnosis of PTSD. Nieves-Rodriguez, 22 Vet. App. 295. Further, treatment records reflect sporadic notations of a PTSD diagnosis, including as recently as July 2019. As such, the December 2015 opinion is inadequate for the purposes of determining whether the Veteran does in fact have a diagnosis of PTSD. As such, a remand is necessary to a new examination to determine whether the Veteran meets the DSM-5 criteria for a diagnosis of PTSD or not. 38 C.F.R. § 4.125.

8. Entitlement to service connection for hypertension.

Treatment records reflect that the Veteran is currently diagnosed with hypertension. Further, the Veteran’s service treatment records contain a single notation from approximately November 1976, in which the Veteran was noted to have hypertension. However, the record containing the notation of hypertension did not include any blood pressure readings. Further, the Veteran’s blood pressure readings are otherwise generally within normal limits during his period of service and the Veteran was not otherwise diagnosed with hypertension during his period of service. Based on the foregoing, the Board finds that a remand is warranted so that the Veteran can be provided with a VA examination concerning the etiology of his claimed hypertension, to include whether the disability had its onset in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

9. Entitlement to service connection for GERD, a hiatal hernia, sleep apnea, and erectile dysfunction.

The Veteran has asserted that his GERD, hiatal hernia, sleep apnea, hypertension and erectile dysfunction are all secondary to his claimed psychiatric disability. While the Veteran is already service connected for an adjustment disorder, as discussed above the separate claim for service connection for PTSD is also being remanded. As any determination with respect to the PTSD claim would materially affect a determination concerning the claims for service connection for GERD, a hiatal hernia, sleep apnea, and erectile dysfunction, those claims are inextricably intertwined with the claim for service connection for PTSD being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).

10. Entitlement to a TDIU.

As with the service connection claims mentioned directly above, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the increased rating and service connection claims being remanded and must therefore be remanded as well. Id.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s adjustment disorder. The examiner should fully describe all symptomatology associated with the Veteran’s service-connected adjustment disorder.

If multiple psychiatric disabilities are diagnosed, the examiner should attempt, to the extent possible, to differentiate between the symptoms associated with the adjustment disorder and those associated with other psychiatric diagnoses.

2. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his cervical spine strain. The examiner is asked to provide the following:

(a) Report the extent of the symptoms of the cervical spine strain in accordance with VA rating criteria.

(b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. 

(c) State whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated. If pain on motion is observed, the examiner should indicate the point at which pain begins. 

(d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time.

(e) Identify and evaluate the severity of all associated neurologic abnormalities.

3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right shoulder capsulitis. The examiner is asked to provide the following:

(a) Report the extent of the symptoms of the right shoulder disability in accordance with VA rating criteria.

(b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. 

(c) State whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated. If pain on motion is observed, the examiner should indicate the point at which pain begins. 

(d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms and/or after repeated use over time.

4. Obtain an addendum opinion from the examiner who provided the January 2016 VA spine examination, or another appropriate medical professional if the examiner is unavailable. The examiner should answer the following:

a)	Is it at least as likely as not (a fifty percent probability or greater) that the low back disability was caused by the service-connected left or right hammer toes?

b)	If not, is it at least as likely as not (a fifty percent probability or greater) that the low back disability was aggravated (worsened) by the service-connected left or right hammer toes?

A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s claimed left shoulder orthopedic disability. The examiner should answer the following:

a)	Identify all current left shoulder orthopedic disabilities.

b)	For all disabilities so identified, is it at least as likely as not (a fifty percent probability or greater) that the left shoulder disability was caused by the service-connected cervical spine strain?

c)	If not, is it at least as likely as not (a fifty percent probability or greater) that the left shoulder disability was aggravated (worsened) by the service-connected cervical spine strain?

d)	If not, is it at least as likely as not (a fifty percent probability or greater) that the left shoulder orthopedic disability is causally related to the Veteran’s active service?

In answering question (d), attention is invited to a service treatment record from approximately March 1976 reflecting treatment for a left shoulder sprain (labelled “STR – Medical” – pg. 29 – uploaded 1/8/15).

A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s claimed wrist disabilities. The examiner should answer the following:

a)	Is it at least as likely as not (a fifty percent probability or greater) that the left wrist disability, to include arthritis and carpal tunnel syndrome, is causally related to the Veteran’s active service?

b)	Is it at least as likely as not (a fifty percent probability or greater) that the right wrist disability, to include arthritis and carpal tunnel syndrome, is causally related to the Veteran’s active service?

In answering these questions attention is invited to service treatment records showing complaints of neurologic symptoms in November 1976 and treatment for a hand injury in January 1976 (labelled “STR – Medical” – pgs. 51–54 – uploaded 1/8/15).

A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

7. Schedule the Veteran for a VA peripheral nerves examination to determine the nature and etiology of the Veteran’s left and right upper extremity neurologic disability. The examiner should answer the following:

a)	Identify all current neurologic disabilities affecting the left and right upper extremities.

Attention is invited to a January 2005 VA examination noting diagnoses of polyneuropathy and cervical spine radiculopathy (labelled “VA Examination” – uploaded 1/18/2005).

b)	For all diagnosed disabilities, is it at least as likely as not (a fifty percent probability or greater) that the left or right upper extremity neurologic disability was caused by the service-connected cervical spine strain?

c)	If not, is it at least as likely as not (a fifty percent probability or greater) that the left or right upper extremity neurologic disability was aggravated (worsened) by the cervical spine strain?

d)	If not, is it at least as likely as not (a fifty percent probability or greater) that the diagnosed left or right upper extremity neurologic disability is causally related to the Veteran’s active service?

In answering question (d), attention is invited to service treatment records from approximately November 1976 noting upper extremity weakness and a possible diagnosis of polyneuropathy of the upper extremities (labelled “STR – Medical” – pgs. 51–54 – uploaded 1/8/15).

A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s claimed PTSD. The examiner should answer the following:

a)	Does the Veteran meet the DSM-5 criteria for a diagnosis of PTSD?

If not, the examiner should explain why a diagnosis of PTSD is not warranted. Attention is further invited to the Veteran’s VA treatment records which reflect sporadic diagnoses of PTSD, including in July 2019 (labelled “CAPRI” – pg. 259 – uploaded 10/1/19).

b)	If a diagnosis is warranted, is it at least as likely as not (a fifty percent probability or greater) that the PTSD is causally related to an in-service stressor, including the incident where the Veteran was dragged by a car?

A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

9. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s hypertension. The examiner should answer the following:

a)	Is it at least as likely as not (a fifty percent probability or greater) that the hypertension was caused by the service-connected adjustment disorder?

b)	If not, is it at least as likely as not (a fifty percent probability or greater) that the hypertension was aggravated (worsened) by the adjustment disorder?

c)	If not, is it at least as likely as not (a fifty percent probability or greater) that the hypertension is causally related to the Veteran’s active service?

In answering question (c), attention is invited to a service treatment record noting that the Veteran was taking medication for hypertension (labelled “STR – Medical” – pg. 50 – uploaded 1/8/15).

A detailed rationale for the opinion must be provided. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Wendell, Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.